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Vogel v. Evans

November 15, 2010



Petitioner is a state prisoner proceeding through counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In October 2005, petitioner pled no contest to two charges of committing lewd acts on children under fourteen years of age with a special allegation that his lewd acts were committed against multiple victims. (Clerk's Transcript ("CT") 12-15.) Petitioner was sentenced to two enhanced prison terms of fifteen years to life, to be served concurrently with a fifteen-year-to-life sentence he was serving as a result of a separate conviction from a different county. (Lodgment 4 at 5.)

Petitioner raises three claims in his petition, filed October 20, 2008, that his conviction must be overturned because his Fourth Amendment rights were violated when he was unlawfully detained and arrested; his First Amendment rights were violated because his actions were constitutionally protected, and the statute under which he was arrested is unconstitutionally vague and overbroad.


After he was arrested in Red Bluff in 1999 for annoying or molesting a minor (Pen. Code, [ ] § 647.6), [petitioner] was prosecuted on different charges in Siskiyou and Placer counties based on evidence obtained as a result of that arrest. In each case, the trial courts denied his motion to suppress evidence. In the Siskiyou County case, we affirmed that ruling on appeal. (People v. Vogel (July 11, 2001, C036488) [nonpub. opn.].) [Petitioner] now challenges the ruling in the Placer County case.

[¶] On the evening of July 20, 1999, Patrol Sergeant Ted Wiley of the Red Bluff Police Department arrested [petitioner] for annoying or molesting a minor after investigating a report that [petitioner] was trying to take pictures of children at Red Bluff High School.FN2 Based on evidence obtained as a result of the arrest, [petitioner] was charged with offenses in two separate cases, one in Siskiyou County and one in Placer County. The Placer County case (case No. 62-009665) was commenced in August 1999 with the filing of a complaint against [petitioner] for having committed seven different crimes against two different victims (ages seven and eight) on or about July 4, 1999.

FN2 Section 647.6 makes it a crime to "annoy[ ] or molest[ ] any child under 18 years of age." (§ 647.6, subd. (a).)

Meanwhile, [petitioner] was also charged with various crimes in Siskiyou County (case No. 99-1455). After the trial court in Siskiyou County denied a motion to suppress evidence, [petitioner] pled guilty to two counts of committing a lewd or lascivious act on a child under age 14 and was sentenced to 15 years to life in prison. In July 2001, this court rejected [petitioner]'s challenge on appeal to the denial of his motion to suppress, concluding "there was ample evidence to establish probable cause to arrest [petitioner]." The California Supreme Court denied [petitioner]'s petition for review. (People v. Vogel, review den. Sept. 19, 2001, S099940.)

In March 2003, following a preliminary hearing in this case, [petitioner] was charged by information with eight crimes in connection with the incidents in Placer County in July 1999. In May 2003, [petitioner] filed a motion to set aside the information. He asserted all of the evidence against him, both in this case and in the Siskiyou County case, stemmed from his arrest in Red Bluff in July 1999, and that the arrest was "illegal" because section 647.6 is "unconstitutional and void." As a result, [petitioner] argued, the court should set aside the information in this case and set aside and expunge the judgment against him in the Siskiyou County case. The trial court (Judge Couzens) denied his motion.

In September 2003, [petitioner] moved to suppress all evidence obtained as a result of his arrest on July 20, 1999, on the grounds he was subjected to a prolonged detention that violated the Fourth Amendment, his arrest was not supported by probable cause, and his arrest violated his First Amendment rights. [Petitioner] also asserted again that his arrest was invalid because section 647.6 is unconstitutionally vague.

In opposing the motion to suppress, the prosecutor called the trial court's attention to this court's ruling on [petitioner]'s appeal in the Siskiyou County case and argued that the motion to suppress should be denied "on collateral estoppel grounds." The prosecutor also opposed the motion on the merits.

In April 2004, the trial court (Judge McKeith) denied the motion. In doing so, the trial court noted this court's opinion in the Siskiyou County case and "concur[red] with the facts and findings in that opinion," but did not mention collateral estoppel or indicate that the court felt itself bound by the prior decision on appeal.

In May 2004, a new complaint was filed against [petitioner] in Placer County (case No. 62-43670) charging him with nine offenses. At the preliminary hearing, the parties stipulated, and the court ordered, that the previous motion to suppress evidence, and the resulting denial of that motion, would be deemed to apply to the new case against [petitioner]. The trial court subsequently granted a motion to consolidate the two cases, and in September 2004 [petitioner] was charged by consolidated information with 17 offenses and various special allegations.

In October 2005, [petitioner] agreed to plead no contest to two of the charges (two counts of committing a lewd or lascivious act on a child under age 14) and admit a special allegation of multiple victims in exchange for dismissal of the remaining 15 charges and a sentence of 30 years to life, to run concurrently with his sentence in the Siskiyou County case. (People v. Vogel, slip op. at 2-5.)


Petitioner appealed to the California Court of Appeal, Third Appellate District, which upheld petitioner's sentence in a partially published opinion filed February 28, 2007. (Lodgment 4.) Petitioner then sought review by the California Supreme Court. Review was denied summarily on June 20, 2007. (Lodgment 5.)

Petitioner filed the instant petition in this court on October 20, 2008. Respondent filed an answer on March 12, 2009. Petitioner filed a traverse on April 15, 2009.


I. Standards for a Writ of Habeas Corpus

Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).

Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'") The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002).

II. Petitioner's Claims

1. Ground One

In ground one, petitioner claims that the evidence used against him violated his Fourth Amendment rights because it was obtained without probable cause ...

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